Appeals court stays key order in Freddy Gray cases

I wrote here about Judge Barry Williams’ order that Officer William Porter, who is awaiting retrial, will have to testify against colleagues who also are charged in the Freddy Gray cases. Porter argued that the Fifth Amendment gives him the right not to testify, inasmuch as he is still in legal jeopardy and his testimony might tend to incriminate him, but the judge rejected this contention. As I noted, Porter’s lawyers promptly took the matter to the appeals court, seeking an injunction.

Today, the appeals court granted the injunction. It is only a temporary one — a stay. The injunction protects Porter from having to testify while the three-judge court sorts its way through the legal issues raised by Judge Williams’ apparently unprecedented ruling.

Meanwhile, though, the trial of Caesar Goodson is set to begin on Monday. The prosecution says that Porter’s testimony is pivotal to its case against the driver of the van in which Gray was held. “Enjoining Porter from testifying as a State witness in Goodson’s trial. . .irreparably harms the government’s ability to prosecute Goodson for the death of Freddie Gray,” it argued.

The prosecution has not asked for a postponement of the Goodson trial, though it may yet do so. The absence of clarity about whether Porter will testify shouldn’t be an obstacle to jury selection. However, it seems to me that the prosecution would very much want to know by the time it makes its opening statement whether it can call Porter.

It’s possible that the appeals court will render a final decision early next week, when jury selection probably would still be in process. However, I don’t think anyone can be confident that it will resolve the novel issue presented that quickly.

The issue has now been briefed, but the court presumably will want to hold a hearing before it decides anything. Nor is it clear that the court would decide the matter immediately following a hearing.